Degrassi stalker case highlights legal gray area

By Greg Quill
Toronto Star Arts Writer
Canadian law is still catching up in the “gray area” of how to handle Internet and communications offences committed in other countries against Canadians in Canada.

That’s the lesson to be learned, say prominent Canadian legal experts, from the dismissal Monday in Melbourne, Australia, of charges against Brian Sutcliffe, 37, who was accused of stalking Canadian actress Sara Ballingall in Toronto via e-mail, snail mail and telephone over the past six years.

Sutcliffe was apparently obsessed with Ballingall, who played Melanie in the made-in-Toronto television series Degrassi High from 1986 to 1991. He was discharged after a magistrate ruled the case was out of her jurisdiction because the effects of Sutcliffe’s alleged actions were felt in Canada, not in Australia.

The Crown is considering appealing the decision.

The case spotlights the increasing difficulty in apprehending and prosecuting people in foreign countries accused of committing communications-related offences against Canadians in this country, says Michael Geist, a law professor at the University of Ottawa specializing in Internet law.

“We may never catch up with technology when it comes to prosecuting offences committed in the borderless world of the Internet, and reconciling local laws and jurisdiction issues set within traditional boundaries,” he explained.

“For the foreseeable future, because the Internet is becoming more and more prevalent in everyday life, it may be difficult to enforce local law in other jurisdictions without considerable political will and expenditure.”

In other words, it is difficult for the law to bridge the geographic distance between two countries that is effortlessly bridged over the Internet.

The real problem with Internet offences, says Toronto criminal lawyer Greg Lafontaine, is “that in order to make out a case you have to get the accused and the victim together in the same place and at the same time. And with the rapidly increasing number and varieties of Internet crimes, that may be very difficult.

“Assuming the conduct of the accused amounts to an offence in Canada, that there is some extradition mechanism in place – as there is with Australia – and that the conduct of the accused falls within the terms of the extradition treaty, the government must decide whether to spend the money to bring the parties together within the jurisdiction of Canadian courts and then to prosecute.

“I can’t see the Canadian court declining jurisdiction where the victim is Canadian, and I’d be very surprised if a Canadian court took the same view as the Australian magistrate if the circumstances were reversed.”

Alan Gold, president of Canada’s Criminal Law Association, says the Australian decision “may be an anomaly and will likely be reversed on appeal.

“Laws are already in place to deal with telecommunications and Internet offenders, and the means – videoconferencing, for example – are in place for trials to proceed and evidence to be given even though the principals are not in the same place.

“The law is doing a good job catching up with Internet and communications-related crime.”